The KSM trial will be fair enough.

The law, lawyers, and the court.
Dec. 1 2009 10:38 AM

The KSM Trial Will Be Fair Enough

And military detention is legit, too.

Khalid Shaikh Mohammed.
Khalid Sheikh Mohammed

The Obama administration's decision to prosecute Khalid Sheikh Mohammed in a civilian court has brought charges from across the political spectrum that his trial will be unfair and thus illegitimate. Critics have articulated three separate concerns. With care, the government can overcome them all. In three acts:

Impartial Jury

Some people worry that Mohammed will not get the "impartial jury" that the Sixth Amendment guarantees him. The Sixth Amendment does not require a jury ignorant of 9/11. It requires only that Mohammed's jurors not prejudge his guilt and that they be guided only by the law set forth by the judge and the evidence presented in court.

The president and attorney general did not help ensure an impartial jury when they commented on Mohammed's trial two weeks ago. Asked whether he understood why Americans might be offended by Mohammed's trial, President Obama responded, "I don't think it will be offensive at all when he's convicted and when the death penalty is applied to him." (Our lawyer-president quickly backtracked, saying, "I'm not prejudging it, I'm not going to be in that courtroom. That's the job of the prosecutors, the judge and the jury.") The attorney general said he would not have brought the prosecution unless he was "confident that our outcome would be a successful one" and later added that "failure is not an option."

These statements by the nation's two top legal officers are unfortunate. The rules of the New York federal court where Mohammed will be tried presume that a "government agent" has likely interfered with a fair trial when he publicly offers "any opinion as to the accused's guilt or innocence or as to the merits of the case."


Mohammed's lawyers will no doubt reference all of this in a motion to dismiss on the basis of prejudicial pretrial publicity. But the statements' actual impact is marginal at most, coming against the background of 9/11 itself and Mohammed's own public acknowledgment of his role in the attacks.

For better or worse, the usual remedy for statements of this sort is not to dismiss the case but rather to redouble efforts to ensure that jurors don't consider the statements. (In a more extreme case, sanctions can also be brought against government officials who utter prejudicial statements, but that will not happen here.) The statements are nonetheless harmful because they diminish the appearance of fairness that is a major advantage of choosing a civilian trial over a military commission.

But they're not a deal breaker. As in the criminal prosecution of Zacarias Moussaoui (who was prosecuted in federal court for the same conspiracy Mohammed will likely be charged with), the impartiality of hundreds of potential jurors will probably be assessed with lengthy questionnaires, approved in advance by the judge and the lawyers for both sides. With patience and skill during jury selection, cautionary jury instructions, and careful jury supervision during trial, a judge should be able to find a dozen people and other alternates who can credibly stick to the facts and law presented at trial.

Detention After Trial

Embracing a position of the Bush administration, Holder recently claimed the power to detain Mohammed as an enemy combatant even if he is acquitted. The Department of Defense's general counsel, Jeh Johnson, made the same claim last summer. This "heads I win, tails you lose" strategy has led critics on the left and the right (Glenn Greenwald and Charles Krauthammer) to charge that Mohammed's prosecution will be a "show trial." It certainly seems contrary to the purposes of a trial to announce that the defendant will not be set free no matter what. But as both Bush and Obama lawyers have now concluded, military detention of a wartime enemy combatant, following criminal acquittal or the termination of a criminal sentence, is lawful.



Smash and Grab

Will competitive Senate contests in Kansas and South Dakota lead to more late-breaking races in future elections?

I Am 25. I Don’t Work at Facebook. My Doctors Want Me to Freeze My Eggs.

The XX Factor
Oct. 20 2014 6:17 PM I Am 25. I Don’t Work at Facebook. My Doctors Want Me to Freeze My Eggs.

Republicans Want the Government to Listen to the American Public on Ebola. That’s a Horrible Idea.

The Most Ingenious Teaching Device Ever Invented

Tom Hanks Has a Short Story in the New Yorker. It’s Not Good.

Brow Beat

Marvel’s Civil War Is a Far-Right Paranoid Fantasy

It’s also a mess. Can the movies do better?

Watching Netflix in Bed. Hanging Bananas. Is There Anything These Hooks Can’t Solve?

The Procedural Rule That Could Prevent Gay Marriage From Reaching SCOTUS Again

  News & Politics
Oct. 20 2014 8:14 PM You Should Be Optimistic About Ebola Don’t panic. Here are all the signs that the U.S. is containing the disease.
Oct. 20 2014 7:23 PM Chipotle’s Magical Burrito Empire Keeps Growing, Might Be Slowing
Oct. 20 2014 3:16 PM The Catholic Church Is Changing, and Celibate Gays Are Leading the Way
  Double X
The XX Factor
Oct. 20 2014 6:17 PM I Am 25. I Don't Work at Facebook. My Doctors Want Me to Freeze My Eggs.
  Slate Plus
Tv Club
Oct. 20 2014 7:15 AM The Slate Doctor Who Podcast: Episode 9 A spoiler-filled discussion of "Flatline."
Brow Beat
Oct. 20 2014 9:13 PM The Smart, Talented, and Utterly Hilarious Leslie Jones Is SNL’s Newest Cast Member
Future Tense
Oct. 20 2014 4:59 PM Canadian Town Cancels Outdoor Halloween Because Polar Bears
  Health & Science
Medical Examiner
Oct. 20 2014 11:46 AM Is Anybody Watching My Do-Gooding? The difference between being a hero and being an altruist.
Sports Nut
Oct. 20 2014 5:09 PM Keepaway, on Three. Ready—Break! On his record-breaking touchdown pass, Peyton Manning couldn’t even leave the celebration to chance.